Capitol Report

November 25, 2013

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To obtain learn more, visit njsba.com.

ALIMONY LEGISLATION

A-3909 (Mainor) Revises alimony laws, including eliminating permanent alimony and establishing guidelines for amount and duration of alimony awards. On Nov. 25, NJSBA Family Law Section Chair Brian Schwartz and Family Law Section Chair-elect Jeralyn L. Lawrence appear before the Assembly Judiciary Committee to oppose this bill, and to support alternative alimony legislation that will clarify certain factors concerning modification and termination of alimony, and will eliminate the term “permanent alimony” from the statutes.

The NJSBA opposes A-3909, believing it proposes to drastically change support obligations for New Jersey families without any empirical evidence to support the premise of the legislation, which includes the concept that every marriage of a particular duration should be treated identically for purposes of alimony. The NJSBA believes that no formulaic approach can properly account for the unique qualities and circumstances of each marriage and divorce. Instead, the NJSBA supports alternative legislation that proposes to cure weaknesses in the current law pertaining to alimony, but preserves a judge’s ability to assess evidence and rule according to the specifics of each case.

NJSBA RECENT ACTION IN TRENTON

Civil Trial Bar

S-3030 (Lesniak) (NJSBA opposes) Creates the New Jersey Economic Opportunity Act II of 2013. Modifies and corrects provisions of the existing New Jersey Economic Opportunity Act of 2013, and implements additional economic development initiatives. On Nov. 14, the bill was released from the Senate Economic Growth Committee and referred to the Senate Budget and Appropriations Committee.

The NJSBA’s Board of Trustees, Legislative Committee and Civil Trial Bar Section had concerns with Section 3 of this legislation, pertaining to supersedeas bonds posted pursuant to court order during the pendency of an appeal of a civil action, because the NJSBA believes the current Court Rules provide adequate protection to all parties. Furthermore, recent Court Rule revisions were designed to address the concerns contemplated by this legislation. As a result, this legislation no longer appears necessary.

In addition, the NJSBA believes this legislation will usurp the rulemaking authority of the Supreme Court and is unfair to plaintiffs who are transformed into judgment creditors once a jury has awarded damages in their favor. The NJSBA has no further issues with the remaining provisions of the act, which would provide similar regulatory relief to that offered by the Permit Extension Act, which the NJSBA has supported in the past.

Consumer Protection Law Committee

A-756 (Barnes, III) (NJSBA supports) Limits the forum of consumer contract disputes to New Jersey. On Nov. 18, the bill was released from the Assembly Consumer Affairs Committee and is awaiting Assembly vote.

The NJSBA’s Board of Trustees, Legislative Committee, and Computer Protection Law Section voted to support this legislation, believing it promotes fairness to all parties involved in a consumer contract. As noted in the statement accompanying the bill, it has become common practice for "forum selection clauses" to be inserted in consumer contracts. Adding forum selection clauses, forcing consumers to litigate or arbitrate in far-flung jurisdictions, generates needless litigation in the form of forum non conveniens motions and motions to dismiss. As such, these motions would be rendered unnecessary due to the clarity of the proposed legislation. The state bar believes a forum selection clause is a burden to the average citizen where the citizen’s rights in the transaction will be governed by laws other than New Jersey's despite the reasonable expectation that the government the citizen/taxpayer elects and pays for exists to protect New Jersey consumers from predation.

Criminal Law

S-1219 (Codey) (NJSBA supports) Increases compensation for wrongful imprisonment. On Nov. 18, the bill passed in the Senate (37-0), was then received in the Assembly and is now awaiting Assembly vote to concur with the governor’s recommendations.

The NJSBA’s Board of Trustees, Legislative Committee and Criminal Law Section voted to support this legislation with amendments because there are so many cases where people are wrongfully imprisoned as a result of false evidence, which has a devastating impact on their lives. The association believes $20,000 does not even begin to compensate someone for this impact, and encourages an increase to $50,000. This recovery would, of course, be independent of civil suit remedies available, which, if successful, could be far more than that specified in the statute.

Elder and Disability Law

S-2241 (Weinberg)/A-3409 (Schaer) (NJSBA supports) Prohibits Medicaid managed care organizations from reducing certain provider reimbursement rates without approval from the Department of Human Services. On Nov. 18, the bill was released from the Assembly Appropriations Committee and is awaiting Assembly vote.

The NJSBA’s Board of Trustees, Legislative Committee, Elder and Disability Law Section and Health Law Section voted to support this legislation, believing this bill would prohibit a health maintenance organization (HMO) that provides benefits under a managed care plan to individuals who are eligible for Medicaid or the New Jersey Family Care Program from reducing reimbursement rates to certain categories of healthcare providers without obtaining prior written approval to do so from the commissioner of human services.

Judicial Administration

S-645 (Pou) (NJSBA supports) Provides that when an indigent person is imprisoned as a result of a default on payment of a court-imposed financial obligation the court may order that credit be given against the amount owed for each day of confinement. On Nov. 18, the bill was amended on the Senate floor (28-0) and is awaiting Senate vote.

The NJSBA Board of Trustees, Legislative Committee and Judicial Administration Committee voted to support this bill, believing it is appropriate to allow an individual to be credited for time served if they are indigent and cannot afford to pay a fine. This is a particularly important issue given that New Jersey’s prisons continue to be overcrowded.

ACR-116 (Johnson) (NJSBA opposes) Proposes a constitutional amendment authorizing a statute to transfer probation functions from the Judiciary to the State Parole Board. On Nov. 18, the bill was released from the Assembly Law and Public Safety Committee and is awaiting Assembly vote.

The NJSBA’s Board of Trustees, Legislative Committee, Criminal Law Section, Family Law Section, and Judicial Administration Committee voted to oppose this bill, believing the probation department’s enforcement of child support is currently embedded in the court system and the transfer would create economic issues between the two branches of government.

The purpose of the probation department is to assist the court. Probation officers supervise child support enforcement, conduct bail investigations, prepare pre-sentence reports, supervise sentenced criminal defendants (including drug court participants), evaluate pretrial intervention (PTI) applications and supervise enrollees and juvenile offenders. These are exclusively judicial functions, not executive branch functions, and the state bar believes there is no legitimate basis for removing these responsibilities from the Judiciary, with whom the probation department works closely.

The status of the probationer is different than that of a parolee, as the Judiciary has not surrendered to the executive the control of a probationer as it has over the imprisoned defendant. The state bar believes the treatment of probationers in the legal system has been and should continue to be substantially different than that of parolees. The NJSBA also has strong reservations about child support enforcement functions, which are appropriately housed in the New Jersey Judiciary, potentially being transferred, given the effectiveness with which the courts administer this issue.